Chapter 1 Evaluation and Eligibility

4 Chapter 1 Evaluation and Eligibility

Chapter 1 Evaluation and Eligibility

For almost forty years, federal law has required public schools to provide special education services to all children with disabilities who are eligible to receive them. The name of the law under which these services are provided to children today is the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA 2004). IDEIA 2004 is the latest version of the law that Congress first enacted in 1975, the Education for All Handicapped Children Act (EHA or Public Law 94-142). In 1983, Congress amended the EHA. In amendments made to the EHA again in 1990, the name of the law was changed to the Individuals with Disabilities Education Act (IDEA). The IDEA was amended in 1997 and again in 2004 when the name was changed to IDEIA. For ease of reading, IDEIA 2004 will be referred to simply as IDEA in this guide.

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How can services provided under the IDEA help my child in school? One of the purposes of the IDEA is to ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that includes special education and related services - designed to meet their unique needs - so they are prepared for further education, employment, and independent living after graduation.

Another important purpose of the IDEA is to ensure that the rights of children with disabilities and their parents are protected.

What is a free appropriate public education (FAPE)? Your child is receiving a FAPE if she's provided with special education services designed specifically to meet her unique needs and if the services are reasonably calculated to allow her to receive educational benefit. These services are laid out annually in your child's Individualized Education Program (IEP).

For a special education program to be appropriate - to meet the IDEA's FAPE standard - it must provide your child the opportunity to interact with like-age peers to the maximum extent appropriate. This is called the least restrictive environment (LRE) for your child. The IDEA requires an IEP Team to begin the LRE decision-making process for your child with the presumption that 1) she will spend all of her day in a regular education classroom with an array of appropriate supports and services designed to enable her to participate successfully and 2) she will be removed from that setting only when her IEP cannot be successfully implemented there.

At what age are children with disabilities entitled to special education services? Eligible children with disabilities from birth through age 2 are provided services by Alabama's Early Intervention System, part of the Alabama Department of Rehabilitation Services.

Local public school systems are responsible for providing special education to eligible children from ages 3 to 21.

Local public school systems are responsible for providing special education to eligible children from ages 3 to 21.

Your child's right to special education services typically ends when she receives either a regular Alabama High School Diploma or reaches the age of 21, whichever comes first.

Children with disabilities who have not earned the Alabama High School Diploma and who have not reached their 21st birthday by August 1st are entitled to begin and complete the new school year even if it means that they receive more than 12 years of instruction.

The extra years of schooling that are available to older youth can help prepare them for further education, successful independent living, and employment. Encourage your child to stay in school for those extra years. Think creatively with her about how that time can best be used to help her become ready for life as an adult.

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What children are eligible for special education and related services? To be eligible for special education and related services under the IDEA, your child first must be identified as a "child with a disability." That is, your child must meet the federal and state eligibility criteria for at least one of these disability categories:

1. Autism 2. Deaf-Blindness 3. Developmental Delay (young children ages 3-9) 4. Emotional Disability (formerly Emotional Disturbance) 5. Hearing Impairment (including deafness) 6. Intellectual Disability (formerly Mental Retardation) 7. Multiple Disabilities 8. Orthopedic Impairment 9. Other Health Impairment 10. Specific Learning Disability 11. Speech or Language Impairment 12. Traumatic Brain Injury 13. Visual Impairment (including blindness)

Second, as a result of her disability/ies, she must also need specially designed instruction and related services in order to benefit from the school's educational program.

What is the purpose of a special education evaluation? An evaluation has two purposes.

First, an evaluation determines if your child is a child with a disability as defined under the IDEA and thus eligible for special education and related services.

Second, the evaluation identifies the nature and extent of the special education and related services that your child needs.

How do I get a special education evaluation for my child? If your child is struggling in school and you suspect she may have a disability, refer her for evaluation.

Your evaluation referral does not have to be in writing. However, it's better to put your referral in writing so you have a record of it. In a dated letter, set out the reasons why you believe your child has adisability which is interfering with her ability to learn or conduct herself appropriately in school and refer her for a special education evaluation. Send the letter to your school district's special education coordinator.

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Keep a copy of the letter. (See the Appendix for a sample referral letter.)

The IDEA requires a school district to seek out and evaluate a child suspected of being a "child with a disability" who goes to school in that district whether she attends public or private schools. This is often referred to as a district's "Child Find" obligation.

After a referral for evaluation is made, what happens next? In a timely manner after the evaluation referral is made, a group of qualified professionals (or an IEP Team) must meet and review the referral to decide if your child should be evaluated. You are an important member of this group.

Follow up with the district's special education coordinator a few days after sending your referral letter. Ask him when the Team will meet to review your referral for evaluation, reminding him that under federal and state law your referral must be addressed in a timely manner. Too often, this meeting gets delayed or put off; follow up as necessary to get it scheduled. If your child is eligible for services, every day that the process is delayed means that she's not getting the services she needs to succeed in school.

At the referral meeting, you and other Team members will consider the referral, reviewing information collected from the school and provided by you. The Team may refuse to evaluate your child if it doesn't suspect that she has a disability or that she needs special education. If the Team refuses to evaluate your child, it must provide you written notice, explaining, among other things, why it refuses to conduct the evaluation and the information that it used to make that decision. You may challenge the Team's decision by using the conflict resolution mechanisms provided for in the IDEA (see Chapter 5 for more information).

If your child is struggling in school and you suspect she may have a disability, refer her for evaluation.

If the Team determines she should not be evaluated, your child should be considered for eligibility under Section 504 (see Chapter 6 for more information) or referred to your school's Problem Solving Team (PST).

If the Team determines that your child should be evaluated, the school must get your written consent for the evaluation. Typically, you will sign the necessary evaluation consent forms at that referral meeting. It is important that you sign evaluation consent forms as soon as possible; the evaluation timeline that your child's school must follow (see below) does not start until it receives your signed consent to evaluate.

Can my child's school refer her for evaluation? Your child's school may also make an evaluation referral. Indeed, if your child's school suspects she may be a "child with a disability" (that is, she meets one of the 13 disability definitions and needs special education) then the school must refer her for evaluation, providing you the appropriate written notice about the meeting described above.

Regardless of who initiates the referral, your child cannot be evaluated without the matter being discussed in a referral meeting and without your written consent.

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Do I have to give written consent to have my child evaluated? For initial evaluations, whether you or your child's school start the process, you must provide written, informed consent before the school can assess your child. If you refuse to consent to an initial evaluation, or if you don't respond to a request for consent, the school may choose to use the IDEA's mediation and due process procedures to pursue an evaluation of your child. However, these override procedures may not be used to force your consent if your child attends private school or is home-schooled at your expense. When you consent to have your child evaluated, you are not consenting to have her receive special education and related services; separate written consent is required from you before the school can provide your child with services. What is a Problem Solving Team? A school's Problem Solving Team (PST) works to improve general education programming to help struggling students so that referral to, and placement in, special education programming is not necessary. PSTs used to be called Building Based Student Support Teams (BBSSTs) in Alabama. Under Alabama law, before a child is evaluated for special education eligibility, pre-referral intervention strategies must be implemented in the general education program and monitored by a school's PST for a minimum of eight weeks. These strategies could include, but are not limited to, interventions such as a behavior plan, remedial school work, tutoring sessions, counselor sessions, etc. If these interventions are determined to be unsuccessful, then the child can be referred for evaluation.

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Do students always have to go through these pre-referral interventions before being evaluated? No, Alabama law allows for certain important exceptions to the pre-referral process.

First, the law allows for these interventions to be waived for a child who:

? has severe problems that require immediate attention; ? is three, four, or five years old and hasn't been in kindergarten; ? has only articulation, voice, or fluency problems; ? has a medical diagnosis of traumatic brain injury; or ? has been referred by her parent for evaluation.

Second, Alabama law allows for these interventions to be done at the same time as the special education evaluation process. So, your child can be undergoing evaluation for special education eligibility and be provided the pre-referral interventions by the PST at the same time.

When you meet with your child's IEP Team to discuss your evaluation referral, remind the Team that PST interventions can be done at the same time as the special education evaluation process. When these interventions are done at the same time, they produce a wealth of diagnostic information that can be used by your child's IEP Team to determine special education eligibility and to identify your child's educational needs.

The federal Office for Special Education Programs (OSEP) addressed the use of learning programs like Alabama's PSTs in an important memo sent to state education directors in January 2011. OSEP acknowledged the value of such efforts in addressing the learning needs of students, including students with disabilities. However, OSEP cautioned schools about using such activities to delay or deny a special education evaluation. If a school suspects that a child may have a disability that would make her eligible for special education services, the district must evaluate her. OSEP noted that a district may deny an evaluation if it does not suspect that the child has a disability. However, it must provide written notice to a parent and explain its reason for denying the evaluation.

What evaluations will my child be given and who will pay for them? Your child must be evaluated in all areas of suspected disability. When evaluations are conducted, it's important that all areas of your child's functioning be considered, including health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.

Alabama law lays out the minimum evaluations that have to be given to determine eligibility for special education services. (See the Appendix for the relevant section of the Alabama Administrative Code.) However, it's up to the IEP Team to determine if other evaluations are needed to fully assess your child so that there's a clear understanding of your child's disability and its impact on her school needs.

Often a child's IEP Team focuses only on one aspect of her learning difficulties, missing other factors that may affect her ability to learn. For example, your child may be identified as having a specific learning disability but, in the evaluation process, her attention difficulties or emotional problems were ignored. If those disabilityrelated needs are not identified and planned for, how can your child succeed in school? Make sure your child's IEP Team fully discusses - and evaluates - all factors that may be affecting her ability to learn.

Your child's school must arrange and pay for any evaluations needed to determine eligibility and the nature and extent of the special education and related services your child may require.

The evaluation process includes the administration of assessments and testing, observations, and collecting information from any available outside professionals. And, of course, information from you - her parent! (Continued on page 11)

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Children in Private Schools

A school district must identify, locate and evaluate all children within the district who may need special education services, including those enrolled by their parents in private schools. This process is often referred to as Child Find.

The school district where a private school is located is responsible for Child Find for students in that private school - not the district where the students live. Private schools include religious schools. School districts must consult with private school officials and representatives of parents of parentally-placed private school children to ensure that the Child Find process treats such students equitably and that parents, teachers, and private school officials are informed about the process. The Child Find evaluation procedures, standards and time lines for private school students must be the same as those used for public school students in the district.

Children enrolled by their parents in private schools do not have an individual right to receive the special education and related services they would receive if enrolled in a public school.

Instead, the IDEA requires a "Services Plan" be developed and implemented for each private school child with a disability who has been identified to receive special education and related services by the school district in which the private school is located.

A Services Plan describes the specific special education and related services being offered to a private school child - what type of services will be provided, where they will be provided, and by whom.

A Services Plan is different from an IEP because it doesn't necessarily plan for the full range of special education and related services needed by a child with a disability. A Services Plan is not developed in the same way that an IEP is developed; a child's parents and her teachers have little say in determining the services - if any - to be provided to a parentally-placed private school student. The school district must develop the Services Plan with timely and meaningful input from private school officials and from representatives of parents of parentally-placed children in the district. In working with these representatives, the school district must discuss:

? types of special education services;

? how services will be allocated if there is not enough money to fund services for all private school children;

? how and when Services Plan decisions will be made.

In the end, the school district has the final authority to make decisions about all aspects of the Services Plan being offered. Think of a Services Plan as "IEP Lite."

Children enrolled by their parents in private schools do not have an individual right to receive the special education and related services they would receive if enrolled in a public school.

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Evaluations must not discriminate by race or culture and must be given in your child's primary language.

All tests must be selected and given so that your child's suspected disability does not affect the test results, unless a particular test is designed to measure the nature or degree of the disabling condition. For example, the intelligence of a child with visual problems cannot be evaluated by means of a written test. However, if the child is being tested to determine if a visual problem exists, a written test may be appropriate.

No single assessment may be used as the sole reason for determining whether your child has a disability or for determining the appropriate educational program for her.

As part of the evaluation, professionals may observe your child in a variety of settings and interview individuals who know and/or work with her.

If you provide the Team any assessment information from private medical or mental health professionals who treat your child, this information must be considered in making eligibility decisions.

How long does the evaluation process take? Your child's school has 60 calendar days from the date you provide written consent to complete all necessary evaluations.

No more than 30 calendar days after the evaluations are completed, your child's IEP Team must meet and determine whether your child is eligible for services under the IDEA.

If your child is found eligible, then an IEP meeting must be held to write her IEP no more than 30 days after that. To save time, it's common for the eligibility decision and IEP planning to be done at the same meeting.

Your child's IEP must be implemented as soon as possible after that initial IEP planning meeting.

All these timelines run regardless of any interruptions in the school year, including summer vacation.

Let's say you refer your child for an evaluation on May 1st. In a timely manner, you and the rest of your child's IEP Team meet and decide that your child should be evaluated and you sign evaluation consent forms. School officials then tell you that they will begin the evaluation process at the start of the new school year in the fall.

Can it do that? No.

Your child may be eligible under the IDEA even though she has not been retained in a course or grade and is advancing from grade to grade.

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